The Responsibility of the US to Release the Funds Necessary to the Humanitarian Response Plan of the UN Coordination of Humanitarian Affairs from the Frozen Assets of the Afghan Central Bank

by Sami Burgaz
By Prof h.c Mehmet Şükrü Güzel

Even prior to the events of 15 August, the humanitarian situation in Afghanistan was one of the worst in the world. By the mid-year mark, nearly half of the population — some 18.4million people — were already in need of humanitarian and protection assistance in 2021. One in three Afghans were facing crisis or emergency levels of food insecurity and more than half of all children under-five were expected to face acute malnutrition. Afghanistan is also facing its second drought in four years. The current drought is impacting one third of the country. This will deplete many people’s financial and asset reserves as they struggle to cope. Already, poor households have taken on catastrophic levels of debt. Many continue to rely on dangerous coping mechanisms to survive, including child labour, early and forced marriage, and risky irregular migration, and are taking on heightened protection risks as a result. To respond to deepening humanitarian need and acute protection risks.

The United Nations (UN) Office for the Coordination of Humanitarian Affairs (OCHA) is the part of the UN Secretariat responsible for bringing together humanitarian actors to ensure a coherent response to emergencies. OCHA’s mandate stems from General Assembly resolution 46/182 of December 1991, which states: “The leadership role of the Secretary-General is critical and must be strengthened to ensure better preparation for, as well as rapid and coherent response to, natural disasters and other emergencies.” OCHA has developed this multi-sector plan which details a four-month (September-December 2021) strategic response to the current crisis in Afghanistan. The plan draws largely on unmet needs detailed in the 2021 Humanitarian Response Plan (HRP) while also incorporating new emerging needs, as they are currently understood. The plan urgently seeks 606.2 million USD to provide prioritised multi-sectoral assistance to 11 million people in the four remaining months of 2021. At present, the 2021 HRP remains only 39 per cent funded. While this plan highlights urgent humanitarian priorities for the remainder of the year, humanitarians continue to emphasise the need for resources to carry out all planned assistance under the HRP. Fully funding the 2021 HRP provides a lifeline for millions of people in Afghanistan who are facing incredible uncertainty at the same time as the devastating impact of the drought is beginning to take hold, a harsh winter approaches, and the COVID-19 pandemic continues to rage.

While OCHA is in search of the necessary funds for the HRP, the United States (US) has frozen nearly 9.5 billion USD in assets belonging to the Afghan central bank and stopped shipments of cash to the nation as it tries to keep a Taliban-led government from accessing the money, an administration official confirmed Tuesday. The official said that any central bank assets that the Afghan government has in the US will not be available to the Taliban, which remains on the Treasury Department’s sanctions designation list. In fact, OCHA can ask for the US to release the necessary funds for the HRP from the frozen Afghan central bank assets and the US has the legal obligation to release the necessary funds for OCHA.

The US has an obligation to release funds for OCHA based on a previous UN Security Council resolution whereby the US authorized the release of funds for humanitarian needs. The UN Security Council first imposed a general and complete arms embargo on Somalia on 23 January 1992 with the adoption of resolution 733 (1992). By resolution 1844 (2008), the UN Security Council decided to impose individual targeted sanctions (an arms embargo, including training and financial assistance, on individuals and entities; a travel ban on individuals; and an assets freeze on individuals and entities. Acting under Chapter VII of the Charter of the UN, by its resolution 2444 in its operative paragraph 48, the UN Security Council decided that until 15 November 2019 and without prejudice to humanitarian assistance programs conducted elsewhere, the measures imposed by paragraph 3 of resolution 1844 (2008) shall not apply to the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia, by the UN, its specialized agencies or programs, humanitarian organizations having observer status with the UN General Assembly that provide humanitarian assistance, and their implementing partners including bilaterally or multilaterally funded non-governmental organizations participating in the UN Humanitarian Response Plan for Somalia.

Acting under Chapter VII of the Charter of the UN, the UN Security Council in its resolution 2462 (2019) Threats to International Peace and Security Caused by Terrorist Acts: Preventing and Combating the Financing of Terrorism, in the preamble reaffirmed States must ensure that any measures taken to counter terrorism comply with all their obligations under international law, in particular, international human rights law, international refugee law, and international humanitarian law. In the operative paragraph 1, the Security Council reaffirms its resolution 1373 (2001) and in particular its decisions that all States shall prevent and suppress the financing of terrorist acts and refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists. In the operative paragraph 5, the UN Security Council asks States to act in a manner consistent with their obligations under international law, including international humanitarian law, international human rights law, In the operative paragraph 6, the UN Security Council demands that States ensure that all measures taken to counter-terrorism, including measures taken to counter the financing of terrorism as provided for in this resolution, comply with their obligations under international law, including international humanitarian law, international human rights law, In the operative paragraph.

Most importantly in the operative paragraph 24, the UN Security Council urges States, when designing and applying measures to counter the financing of terrorism, to take into account the potential effect of those measures on exclusively humanitarian activities, including medical activities that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law.

The UN Security Council in its resolutions 2444 and 2462, acting under Chapter VII of the UN Charter on implementing sanctions for Somali and measures in combatting terrorism made clear that any and sanction` negative effect should be prevented under the State’s responsibility originating from the international humanitarian law, international human rights law and etc. States are bound their unilateral declarations during the Security Council debates as a source of law within the principle of maxim allegans contraria non est audiendus, same as the binding character of the declarations made before the Permanent Court of Justice and the International Court of Justice. The approval of the member States of the UN Security Council resolutions also creates unilateral declarations as a source of law. Comments from the US on the International Law Commission`s Draft Conclusions on the Identification of Customary International Law as Adopted by the Commission in 2016 on first reading, January 5, 2018 with a diplomatic note given by the US Mission to the UN New York also is a legal document of approval of the USA accepting the principle of maxim allegans contraria non est audiendus,as :

It is axiomatic that customary international law results from the general and consistent practices of States followed by them out of a sense of legal obligation. This basic requirement has long been reflected in the jurisprudence of the ICJ. It is also reflected in the practice of States in their own statements about the elements required to establish the existence of a customary international law rule.

OCHA can request that the US release the funds necessary for the HRP from the frozen assets of the Afghan central bank within the principle of maxim allegans contraria non est audiendus. In like manner, any state can ask the US to release the funds necessary for the HRP of the OCHA through a letter written to the UN Security Council.


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